Former D.C. Prosecutor: It Would Be Crime for Weiner to File False Police Complaint

June 1, 2011 - 4:27 PM

Rep. Anthony Weiner (D.-N.Y.)

Rep. Anthony Weiner (D.-N.Y.) (AP photo/Barry Hamburg)

(CNSNews.com) - Joseph E. diGenova, former U.S. attorney for the District of Columbia, said today it would be a crime for Rep. Anthony Weiner (D.-N.Y.) to file a complaint with the police claiming his Twitter account had been hacked if he knew it had not been hacked.

Last Friday, a Tweet that included a lewd photograph was sent from Weiner’s Twitter account to a 21-year-old woman in Seattle, whom the 46-year-old congressman followed on Twitter. Weiner issued a statement saying that his Twitter account had been hacked and that someone had sent the lewd photograph to the woman as a prank. Thus far, Weiner has not indicated that he has filed a complaint about the alleged hacking incident with any law enforcement agency.

“If he in fact filed a complaint claiming he had been hacked, when in fact he had not been, that would be making a false statement to either local police authorities or federal officials. That would be a crime,” diGenova told CNSNews.com, pointing to 18 U.S.C. 1001 as the relevant statute.

“In instances like this, the FBI would not initiate an investigation,” said diGenova. “They would wait until a victim requested an investigation. Or say the [House] Sergeant at Arms got the complaint from the member, the Sergeant at Arms of the House might request the investigation, or the Clerk of the House might request the investigation from the FBI. The FBI would not start an investigation on their own.”

The FBI echoed diGenova’s assessment that the bureau would not begin an investigation in a matter such as Weiner’s until a complaint had been filed.

“It takes an individual coming forward and saying these are my circumstances and then that information is considered,” FBI national spokeswoman Jenny Shearer told CNSNews.com. “Somebody needs to initiate something with us. Just because it’s on the news cycle, that doesn’t mean we just open something up. An initial step needs to be taken.”

On Monday, Weiner repeatedly evaded answering the question put to him by CNN’s Dana Bash about why he had not reported the alleged hacking incident to the police. Weiner called one journalist present a “jackass” and said that the matter was a distraction.

Tuesday on MSNBC, Weiner said the hacking incident he had alleged was not important enough to report to authorities. "It is not a national security thing. I'm not sure I want to put national, federal resources into trying to figure out who posted a picture on Weiner's website of who knows what. I'm not sure it rises--no pun intended--to that level," said Weiner.

When MSNBC asked Weiner if the lewd picture sent by his Twitter account was of him, he said, “You know, I can’t say with certitude. My system was hacked. Pictures can be manipulated. Pictures can be dropped in and inserted. One of the reasons that I asked a firm that includes an Internet security arm is to take a look at what the heck happened here.”

Weiner serves on the House Energy and Commerce Committee's Subcommittee on Oversight and Investigations which is charged with investigating matters within the oversight jurisdication of the committee. The committee's oversight jurisdiction includes "interstate commerce" and "consumer protection, including privacy matters generally."

Ayn Sandalo Dietrich, a spokesman for the FBI office in Seattle, told CNSNews.com that the Capitol Police would be the first to investigate the matter if a hacking occurred on Weiner’s computers, smart phones or electronic devices. Seattle is the home of the 21-year-old woman who received the Tweet.

“When it pertains to members of Congress, I would defer to Capitol Police first,” Dietrich told CNSNews.com. “A federal official may require a deeper review, but again any review of criminal conduct does not necessarily result in the opening of an investigation.”

The Capitol Police told CNSNews.com that they are not investigating the matter.

“We don’t have an active investigation,” said Capitol Police Sgt. Kimberly Schneider.

Former federal prosecutor diGenova does not understand why Weiner is handling the matter the way he is if he was actually hacked.

“He’s hired a lawyer. For what reason I don’t know,” said diGenova. “If he’s a victim of a hacking, he doesn’t need a lawyer, he needs a law enforcement official. If he’s not the victim of a hacking, he might need a lawyer for some other personal reason, unless he has hired a lawyer for the Ethics Committee, which might be looking into this eventually because of the nature of the activity, assuming it’s him for example, and assuming it’s a Twitter account that the House pays for.”

In a statement to the New York Daily News on Sunday, the 21-year-old woman who received the Tweet said Weiner follows her on Twitter, but she has never met him, and that she believed him when he said he was hacked.

“I have seen myself labeled as the ‘Femme Fatale of Weinergate,’” she said in the statement. “All of this is so outlandish that I don't know whether to be pissed off or amused, quite frankly.”

18 U.S.C. 1001, the law cited by diGenova, says in part that “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;  (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years …”